Wage Theft a Rampant Problem in California

wage theftStarbucks is the latest big-name business that has been vilified for widespread wage policies that rob employees of earned wages. The court case has been brewing for six years and has undergone numerous twists and turns. Initially, the case, which was filed by former employer Douglas Troester, was deemed by the courts to be too trivial to even consider. Ultimately, though, California’s Supreme Court overturned that ruling, and found in favor of Troester. If you find yourself suffering from unethical wage theft practices at your place of employment, consider seeking the assistance of a local employment attorney to resolve the problem.

What Constitutes Wage Theft?

Wage theft can rear its ugly head in many forms. At Starbucks, the issue involved superiors asking workers to complete additional tasks after clocking out. Additional forms of wage theft include:

  • Failing to pay overtime;
  • Refusing to provide an employee’s final check after said employee leaves the job;
  • Paying for fewer hours than actually worked, or not at all;
  • Failing to pay minimum hourly wages or higher.

Employers Break Several Laws with Wage Theft Practices

Wage laws are outlined in a number of places, including:

  • The Fair Labor Standards Act (FLSA): Outlines federal minimum wage requirements and time-and-a-half pay for any hours over 40 in a week;
  • Bacon-Davis Act: Provides that workers who are employed by federal contractors are entitled to the prevailing wage in the vicinity in which their work occurs;
  • Tax Laws: Guidelines outline when employers may classify workers as independent contractors (saving employers money) and when workers must be classified as employees.

Common Fields for Wage Theft

Although it can happen in any field, certain industries tend to exploit wage theft practices more often than others. In particular, wage theft is prominent in restaurant work, the agricultural field, janitorial work, retail employment, and home health care services.

California Tops States for Wage Theft

Surprisingly, of the nearly $9 billion wage theft claims in the country in the last couple of decades, more than 50% have come from right here in California. One report states that wage theft is actually “built into the business model” of many American corporations. In California, a good chunk of the infractions are related to strict state codes for the rest and meal breaks to which employees are entitled. Another common issue relates to whether employees should be paid for the time it takes to put on and remove protective equipment and clothing. Disturbingly, the lion’s share of these cases are not against small operations that may be struggling to survive. Most labor probes involve large, profitable businesses that know better but choose to cut corners when it comes to fair pay to their employees. [Read more…]

Racism Within a Police Department?

racism within police departmentRacism within a police department? You would expect the people in the business of law enforcement to actually know the law and follow it. But according to one officer of the San Jose Police Department, when it came to racist comments and discriminatory behavior, the department knew of harassment and did nothing to stop it.

Details of the Racism Claim

Officer Nabil Haidar escaped a civil war in Lebanon by coming to the United States in the late 80s. Roughly a decade later, he joined the SJPD. According to him, discriminatory nicknames have plagued him from the beginning, increasing in ruthlessness over time. The taunts included tags such as The Beirut Bomber, ISIS, and Taliban. Why did he not complain when things first started? He says he feared retaliation.  

Finally, in 2017, Haidar had enough when a sergeant “joked” in a meeting that Haidar had worked with ISIS for two years. Haidar quickly filed an administrative claim alleging harassment. After almost a year passed with no conclusion to the internal investigation, Haidar took things a step further and filed suit against the department. In addition to the initial discrimination and harassment, Haidar asserts that the department Chief has retaliated against him with an unfair reprimand for a collision in which Haidar was involved. According to Haidar, the chief left out pertinent information related to the crash, which would have exonerated him to an extent, in the reprimand.

In Haidar’s May 2018 claim, he says a transfer taken due to the problems has resulted in more than one million dollars in lost future wages over the coming years until he is eligible to retire.  He also is claiming $5 million for emotional distress.

Equal Employment Opportunity Commission Laws

Federal law prohibits discriminating against individuals due to race, culture, or ethnic background. This relates to any aspect of employment, including hiring, pay, benefits, training, promotions, job assignments, layoffs, and firing. Equally important, the law addresses harassment, stating that employees shall not be victimized with racial slurs or pejorative statements related to race or ethnicity. This applies to coworkers and supervisors alike. If such harassment exists and is the basis for creating a hostile work environment, it can result in legal consequences.

Racism – A Significant Problem

Although some might believe that racism is no longer a problem in America, the numbers tell a different story. Nationwide, nearly 35,000 suits filed with the EEOC were resolved in 2017 alone, at a cost of over $75 million.  Clearly, a substantial problem still permeates this country in all sorts of businesses. [Read more…]

Unjustly Terminated?

unjustly terminatedWhen Barnes & Noble fired chief executive officer Demos Parneros, he fought back with a lawsuit claiming he was unjustly terminated. That the bookstore made up reasons to get rid of him, and by firing him after just over a year of employment, they breached their contract with him and harmed his reputation. He went after the company in court, asking for over $4 million in severance pay and additional damages.

Unjustly Terminated? Barnes and Noble’s Side

Barnes and Noble, on the other hand, contends that Parneros was no unjustly terminated. They stand by their decision to fire the executive, and has filed a countersuit claiming they should be able to recoup the money already paid to him during his 14-month stint with the company due to his “disloyal conduct.” His lawsuit, they claim, is simply an attempt by Parneros to extort money from the country’s largest chain bookstore.

The termination, they say, was the result of serious allegations of sexual harassment. A female employee reported that Parneros engaged in unwanted comments and touching, telling her in one incident that she seemed the type of woman who would “put out” if she were “wined and dined.”

Parneros is also accused of bullying CFO Allen Lindstrom.

In addition to the sexual harassment and bullying claims, Parneros is impugned for trying to sabotage a major sales deal involving Barnes & Noble and an unknown entity.

Unjustly Terminated? The Denial

Parneros denies the claims, and contends that he never sexually harassed female employees; nor did he bully subordinates, or in any way behave in a way that could be interpreted as disloyal to the company. In terms of his treatment of Lindstrom, Parneros attests that the treatment was appropriate in light of Lindstrom’s subpar work performance.

The idea that Parneros attempted to interfere with any sales deals is totally false, according to him. The sales deal fell apart, and the company founder, Leonard Riggo, blamed Parneros unjustly. According to Parneros, he was unjustly terminated soon afterward, and his severance package was withheld.  Beyond that, Barnes & Noble put out a press statement that made Parneros seem to be leaving due to gross sexual misconduct, something he says the company knew was patently false. His lawsuit claims breach of contract and defamation.

What Now?

With both cases pending, the outcomes remain to be seen. Barnes & Noble is reconfiguring its management team, and both sides seem to be preparing for a fight to the end. [Read more…]

Boeing Pays for Hostile Work Environment

hostile work environmentSix hostile work environment lawsuits at Boeing. Boeing considers itself to be a stellar employer, one that aspires to build values of respect and that is intolerant of harassment. A jury, however, found that the company fell short of that aspiration, and demonstrated just how serious the shortcomings were with a verdict awarding hundreds of thousands of dollars to a disparaged employee.

Details of the Boeing Hostile Work Environment Case

Roderick Marshall was a veteran employee at Boeing, having put in 18 years with the company. He tolerated jokes that were seething with racism without reporting them to supervisors. While management does not dispute this, they did not deal with the situation because, they say, Marshall failed to follow company protocol for reporting complaints.

Then one day, a white employee at Boeing twiddled with a string of rope, eyes on Marshall, Marshall could not have imagined what was to come next  The white man tossed the rope to Marshall, who caught it, only to see that it had been tied into a hangman’s noose. Offended, Marshall had had enough. A jury awarded Marshall $350,000 in damages. Their judgment listed several problems:

  • Boeing failed to prevent harassment;
  • Hiring practices were negligent;
  • Supervision of employees was lax;
  • Retention of problem employees was negligent.

This case highlights the responsibility of employers to police the work environment in order to ensure that employees are safe in all regards. Unfortunately for Boeing, their court days are not over. Five additional lawsuits are currently in the works, all related to discrimination and harassment.  

Defining a Hostile Work Environment

The U.S. Equal Employment Opportunity Commission (EEOC) cites particular requirements in defining a hostile work environment:

  • Demonstrations of discriminatory behavior directed toward a protected class (race, gender, age, sex, disability, or religion);
  • Repeated, not isolated events over time;
  • Actions severe enough that a reasonable person’s work would experience interference as a result of feelings of intimidation and/or abuse, or;
  • Actions that prevent an employee’s ability to advance;
  • A failure of management to respond to a known and/or reported situation, or;
  • An insufficient response to the problem.

Building a Healthy Workplace Environment

As an employee, there are a number of things you can do to help build an inclusive work environment. Some suggestions include:

  • Joining company activities and events designed to help employees network and grow relationships;
  • Participating in additional professional organizations;
  • Creating your own social groups with individuals from work, or who can help you with workplace issues.
Experiencing a Hostile Work Environment

In the event you are suffering from a hostile work environment, what should you do? Here are some tips:

  • Keep dated notes about specific issues;
  • File a complaint with human resources;
  • Consider getting counseling to deal with the emotional repercussions.

[Read more…]

California Breach of Employment Contract

california breach of employment contractContact a California breach of employment contract attorney if you feel the terms of your employment contract are not being honored. Contracts are entered into in the workplace every day. While many employees here in California are considered to be “at will” employees who can be terminated without cause, certain employees do have contracts that specify a particular time frame for work, and that may or may not have options for extensions. If you feel the terms of your contract are not being honored, you may wish to consult with an attorney experienced in such matters to determine how to proceed.

California Breach of Employment Contract Defined

What constitutes a California breach of employment contact? Several elements must exist:

  • You and one or more parties must have entered into a contract;
  • You substantially met the requirements set forth in the contract;
  • If you did not complete all the requirements, you were reasonably excused from them;
  • Your employer did not meet his or her requirements set forth in the contract, or;
  • Your employer acted in a way that was prohibited within the contract;
  • You experienced some harm;
  • The harm was essentially due to the breach of contract.

What is a Material Breach?

A material breach is one that is so significant that it results in substantial damage, or it validates your reason for failing to fulfill your contractual obligations. For instance, let us say you contracted with an employer to redesign a web page and develop advertising materials over the course of one year. You were expecting to be paid monthly, but after three months you had yet to see a paycheck, or worse, you were let go. You are clearly justified in discontinuing your work because the failure to pay you as agreed for the established time period was a material breach.

What is a Non-Material Breach?

On the other hand, a non-material breach of contract generally involves only minor damage that would not entitle the other party to forgo their responsibilities of the contract. For instance, let us say you had agreed to redesign the web page and develop advertising materials by January 1st.  Although you completed most of the job, the finished advertising materials were not available until January 4th. While you did fail to meet the terms of the contract, the damages to your employer are presumably minimal under the circumstances. Ergo, there is no justifiable reason for your wages to be withheld.

California Breach of Employment Contract – Damages

The types of damages recoverable include general damages and consequential damages.

  • General damages are those that come directly out of the breach, such as wages for the job that was done.
  • Consequential damages go beyond what might be expected due to the employment contract breach.  For example, if the breach led to additional unforeseeable costs, they would be consequential damages.

[Read more…]

Should You Sue Your Employer?

sue your employerShould you sue your employer? Plenty of people dislike their jobs. Sometimes it is because of the work itself, sometimes it is due to personnel issues, and sometimes it is because of a toxic work environment. When does simple disgruntlement become a legitimate reason to sue your employer? Every situation is different, and only an experienced employment attorney can answer that question for you.

Common Reasons to Sue Your Employer

Suing an employer is a pretty bold move, but all too often it is justified, and is the only way employees can be empowered to regain the dignity, wages, and satisfaction they deserve after mistreatment on the job.  Here are just a few of the most common reasons employees decide to fight back against unscrupulous employers:

  • Firing without giving a reason: Some employers think that just because California is an at-will state, they can terminate anyone without providing an explanation. What they do not realize is that if they fail to explain the motivation behind their decision, the employee may rightfully suspect the termination is based on discrimination, retaliation, or some other unsavory factor. This can land the employer in court pretty quickly.
  • Claiming poor performance when the evidence says otherwise: If an employee has a long track record of satisfactory job performance and things suddenly change due to new management or some other issue, defending the termination will be tricky against a skilled prosecution team.
  • The timing for termination stinks: When an employee files some sort of complaint with HR, Workers’ Compensation, or another work-related entity, and is suddenly on the firing line, it may not be too difficult to connect the dots.
  • Delaying the investigation for a complaint: If the employer drags out an investigation about harassment or some other issue, it can become ammunition in a lawsuit;
  • Ignoring company policies: When policies are on the books, employees can expect their bosses to follow them. If that does not happen, the end result may be a lawsuit.
  • Discrimination: State and federal laws offer protections for employees based on a number of circumstances, including race, age, gender, disability, sexual orientation, pregnancy, and religion. When employers discriminate in the hiring, training, pay, promotion, or termination of individuals based on a protected status, it is simply a lawsuit waiting to happen.
  • Failing to accommodate: In addition to discrimination based on protected status, failing to provide reasonable accommodations is unlawful. Whether in regards to requirements related to attire, schedules, physical surrounding, job requirements, or other simple adjustments, employers must comply with EEOC rules.

[Read more…]

Obesity Discrimination?

obesity discriminationObesity discrimination in the workplace? After 15 years on the job, a California woman began having problems. She says the issues all revolved around a new manager with a nasty temperament and his disdain for her and her oversized body.

Obesity Discrimination – Cornell’s Story

As a college co-ed, Ketryn Cornell got a job as a lifeguard at the Berkeley Tennis Club, a revered tennis facility that has been the host of many a celebrity tennis star over the years.  

Over time, Cornell tried her hand in a number of positions at the club. She struggled with weight gain, and ultimately found she was not able to walk much farther than one mile or to stand in place longer than about an hour. Severe obesity was impacting her life and her health. 15 years after starting as a lifeguard at the luxury club, it would begin to affect her job.

New Manager Does Not Play Nice

When a new general manager was hired, Cornell claims he targeted her for her size, and deliberately humiliated her by ordering a work uniform that was several sizes too small. But that was not the end of it. Her manager pointed out that Cornell ought to consider getting weight-loss surgery, and told her she was not a “good fit” for the club.

Furthermore, when Cornell complained that a fit, young co-worker was making more money than Cornell was, the manager conceded that the petite woman was “a good fit.”

Termination

Ultimately, this story ended like many such cases do – with Cornell’s termination. The manager claimed that Cornell was surreptitiously attempting to record a board meeting one evening at the club. He used the accusation as the basis for firing her.

Obesity Discrimination – The Lawsuit

Cornell was having none of that, and quickly filed a suit claiming discrimination based on her disability (obesity), harassment, retaliation, and wrongful termination. The case was thrown out of court on a summary judgment motion, but the discrimination and harassment rulings were reversed on appeal.  

What Does it all Mean?

To prove obesity discrimination, Cornell will still be required to prove that her obesity constitutes a disability as a result of a physiological cause, and she will now have the opportunity to show that the manager’s explanation for her termination was bogus, and simply a ploy to get rid of her. Additionally, she will be able to put forth her evidence that the manager’s behaviors were predicated by malice, resulting in her wrongful discharge. [Read more…]

Complaining at Work can Get You Fired

complaining at workCan I be fired for complaining at work? Let’s say you have a complaint about how things are going at work. If you are under the impression that free speech is a God-given right to which you are entitled anytime, anywhere, you are wrong. Although the Fair Work Act makes it illegal to fire someone just for complaining, your employer can limit certain speech in terms of the time and venue in which you express your complaints.

Complaining at Work – Google Drops the Hammer

James Damore was—emphasis on was—an employee at Google. That is, until he posted a lengthy document about the company’s efforts to improve diversity among employees on a company platform. His views were allegedly steeped in sexism, and were offensive to fellow employees, who refused to buy into the notion that the biological superiority of men was the cause of the gender gap in the technology industry. Whether you agree with Damore or not, the legal issue centers on an employer’s right to control speech on a platform paid for by the company. As it turns out, although public and government entities are not allowed to restrict your free speech, the same is not true for private companies. So, how do you, as an employee, know what the rules are when it comes to expressing yourself?

Does Your Company Policy Cover Complaining at Work?

When Google CEO Sundar Pichai responded to Damore’s post, he specifically referred to the code of conduct at Google. Most companies have an employee handbook that details expectations related to this type of thing, and they generally close by stating that failure to abide by the company’s expectations can lead to disciplinary procedures, and, potentially, termination.  It would behoove employees to be clear about company policies.

Know What You are Talking About

Damore was taking the company to task for policies promoting diversity, but his point became lost in controversial statements that have been scientifically disproven. His complaint became weak and his argument ineffectual.

Complaining at Work – Protect Yourself

If you have legitimate complaints about the job, there are some things you can do to ensure your complaining at work is heard without resulting in unemployment:

  • Formalize the complaint: Whether that means inviting a union representative, scheduling a meeting with management or HR, or simply writing your issues on a workplace form, demonstrate that you are serious about a workplace issue.
  • Assemble prior performance reviews and other documentation that may rebut allegations against your job performance in the event the complaint ruffles some feathers.
  • Offer constructive criticism, and, if possible, tell management what you would like to have happen.
  • Handle yourself professionally. Your supervisor will have a tough time saying you have an attitude problem if you do.
  • Document the interaction. If your complaint is related to discrimination or other legal issues and the company fails to respond appropriately, they could be facing legal trouble.

[Read more…]

Workplace Religious Discrimination

workplace religious disriminationWorkplace religious discrimination does not pay in California. Is America a Great Melting Pot or a Cultural Stew? Regardless of how you view the enormous collection of cultures, ideas, and religions in this country, the legal protections for differences are alive and well. When it comes to religious differences, federal and California law join to protect all Americans, regardless of faith. If your employer fails to recognize your religious rights under the law, a conversation with a local employment attorney could prove useful.

Legal Requirements and Workplace Religious Discrimination

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for the religious beliefs of employees. This law, in conjunction with California’s Fair Employment and Housing Act (FEHA) provide significant religious protections for employees.

FEHA’s requirements ask employers to make reasonable accommodations for religious reasons, provided the accommodation does not lead to the segregation of employees based on religious affiliation. Such accommodations would be expected to include:

  • Changes in work schedules in order to accommodate religious holidays or observances;
  • Adjusting dress and grooming standards;
  • Allowing for private prayer time during the workday as prescribed by the religion.

Proving an Accommodation Causes Undue Hardship for the Company

It is not necessary to make adjustments to company policies and procedures if those adjustments would result in undue hardships. Those hardships will be evaluated considering several factors, including:

  • Nature of the accommodation;
  • Costs required;
  • Resources of the company;
  • Size of the facility;
  • Geographic factors.

Workplace Religious Discrimination 2018 Lawsuit

One California business discovered just how serious it is for companies to decline to make the religious accommodations required by law. While making the adjustments would have been a minor adjustment for a single employer, their decision to resist working with that employee wound up costing them more than they bargained for.

Learning a Lesson on Workplace Religious Discrimination

Universal Protection Services is a private security company that provides services for a number of California businesses. When a security guard requested modifications to the compulsory grooming standards set forth by the company based on his Muslim religious convictions, the company refused to make an exception. Just days following his entreaty, the employee was fired, according to the Equal Employment Opportunity Commission (EEOC).

The employee filed a complaint with the EEOC, and the legal wheels started turning. Universal refused to agree to any settlement in the case, and after enduring litigation, was required to make a number of concessions, in addition to having to fork over 90K.

  • They were required to work with an EEOC monitor, whose task it was to appraise and modify company policies with regard to religious accommodations, to ensure company guidelines were in accordance with Title VII laws;
  • They were obliged to provide annual employee and manager trainings regarding EEOC requirements;
  • They were told to post a notice informing employees of religious rights under EEOC rules;
  • They were expected to record instances of religious discrimination complaints and issues and report those situations to the EEOC.

[Read more…]

FMLA Violations and Harassment Lead to Court for Employers

Individuals and families often have legitimate medical issues that lead to a request for time off of work. The federal Family and Medical Leave Act (FMLA) and the state’s California Family Rights Act (CFRA) lay out the responsibilities of employers (applicable to those with 50 or more employees) when it comes to family, medical, and/or parental leave. While the leave may be unpaid, it is job-protected time off. In the majority of situations, employees must be allowed to return to their previous position or an equivalent position as it relates to pay, benefits, working conditions, status, and fringe benefits. Crucially, employees are entitled to request and take leave without fear of retribution from employers.

FMLA – Employee Rights

Eligible employees are entitled to as much as 12 weeks of leave annually. This leave may be taken to deal with an array of issues, including:

  • Personal illness;
  • Caring for a family member who is ill;
  • Bonding with a newborn baby, a child who has been adopted, or a foster child;
  • A family member’s military service when associated with a qualifying exigency (FMLA provides 26 weeks to care for service members who have been injured).

Pregnancy Disability – FMLA

California’s CFRA laws apply to employers with five or more employees, and provide eligible employees as much as four months of pregnancy disability leave (PEL). This is in addition to FMLA bonding time.

When FMLA and CFRA Laws are Ignored

Failure to adhere to state and federal laws regarding leave is one of the most common reasons employees seek redress through civil lawsuits. In particular, retribution from irked employers gets them into trouble. Consider the case of Maria Salgado:

When Maria Salgado was called “psychotic” and “psycho” by a coworker, it understandably added to her stress at work. This was not helpful, especially since she suffered from anxiety and depression before the harassment began. Notably, the name-calling occurred shortly after Salgado informed her supervisor of her mental health status. Could the supervisor have breached ethical and legal boundaries by sharing this confidential information with Salgado’s co-worker?  If so, it would be the latest in a long list of harassment experienced by Salgado at the hands of her supervisor, including:

  • Objections for taking time off to deal with medical issues related to an injury, diabetes, and mental health problems;
  • Disciplinary action related to Salgado’s providing less than 24-hour notice prior to taking sick days or medical leave;
  • Confrontations and berating for expressing concerns in an open meeting hosted by the union to deal with medical leave issues;
  • Retaliating by insisting that Salgado be fired after three tardies totaling 13 minutes;
  • Failing to address co-worker harassment that occurred in the presence of the supervisor.

[Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.